ANZ v McKay [2013] NSWSC 683

Supreme Court New South Wales

Medium Neutral Citation: ANZ v McKay [2013] NSWSC 683 Hearing dates: 30 April 2013 Decision date: 30 April 2013 Jurisdiction: Common Law Before: Davies J Decision: (1) Defence of the 14th of January 2013 by the Third Defendant and the Defence of 17 April 2013 by the First and Second Defendants are struck out. (2) The application by the Third Defendant to amend her defence is refused. (3) Any further defences by any of the Defendants are to be filed and served by 28 May 2013. Catchwords: PROCEDURE - Possession List - early judicial directions - consideration of defences - unrepresented defendants - defences struck out with liberty to re-plead Legislation Cited: Contracts Review Act 1980 Uniform Civil Procedure Rules Cases Cited: Garcia v National Australia Bank Ltd (1998) 194 CLR 395 Category: Interlocutory applications Parties: Australia and New Zealand Banking Group Ltd (Plaintiff) Carolyn Joy McKay (First Defendant) Christopher Scott McKay (Second Defendant) Jillian Anne Taylor (Third Defendant) Representation: Solicitors: C Bowie, Gadens Lawyers Unrepresented (First, Second and Third Defendants) File Number(s): 2012/339513

Judgment 1These proceedings commenced on 31 October 2012 claiming monies under two guarantees given by the First and Second Defendants on the one hand and the Third Defendant on the other. The guarantees were in respect of loan facilities made available to two companies called Carott Pty Ltd and Taylor Made Training Pty Ltd on or about 16 July 2008. 2It is asserted in the Statement of Claim that default occurred because the company Carott Pty Ltd was liquidated on 5 October 2012. The liquidation meant that upon demand the guaranteed amounts were due and payable by the guarantors. Demands were issued on 9 October 2012. They have not been complied with. That led to the commencement of the present proceedings. 3A Defence has been filed by the Third Defendant on the 14th of January 2013. That Defence, apart from admitting paragraph 1 of the Statement of Claim, simply says that the Third Defendant does not admit or does not know and cannot admit the remainder of the allegations. Such a Defence does not comply with the Rules because it purports to plead the general issue. The Third Defendant has, however, served a Notice of Motion on the Plaintiff seeking leave to file an amended defence. A copy of the amended defence is provided. 4The proposed amended defence is in relatively identical terms to the Defence that was filed by the First and Second Defendants on the 17th of April 2013. That Defence appears to raise three matters. The first is that the guarantee and indemnity is said to be deficient because the Bank did not follow its guidelines and, in particular, by not advising on the need for independent legal advice and for failing to provide a draft statutory declaration that can go to a solicitor independently instructed who can indicate in that statutory declaration that he or she has appropriately advised the borrower. 5Secondly, there is a reference to, and reliance on, the High Court's decision in Garcia v National Australia Bank Ltd (1998) 194 CLR 395. Whilst on the face of it, that case might have been relevant to Mrs McKay, she informs me that she was a director and shareholder of borrower companies, or at least one of them, it makes it unlikely that that case would apply, but the basis of its application is not set out in the defence. It is not clear how the defence is relevant to the First and Third Defendants. 6The third matter raised in the First and Second Defendants' Defence and the Third Defendant's proposed defence is reliance on the Contracts Review Act 1980. It is said that the contract is unjust. The particulars in relation to the unjustness refer back to paragraph 10 of the Defence in each case, where reference is made to Garcia and also to the failure of the Bank to explain the need for independent legal advice. 7That is not a proper setting out of the particulars or of the material facts which go to make up a defence in reliance on the Contracts Review Act. At the least factual matters referred to in s 9 of the Act would need to be specified, so that an understanding can be gained about how it is said that the guarantees were unjust in all the circumstances. 8For those reasons, the Defence of the 14th of January 2013 by the Third Defendant and the Defence of 17 April 2013 by the First and Second Defendants are struck out. The application by the Third Defendant to amend her defence is refused at this stage. 9As the three Defendants are unrepresented, it is appropriate that they be given a reasonable period of time in which to seek some legal advice and to file and serve further defences. In those circumstances, I will direct that any further defences by any of the Defendants are to be filed and served by Tuesday 28 May and I will stand the proceedings over for further directions before me to 31 May 2013 at 9.30am. Liberty to apply on two days' notice.